' MUHAMMAD NAWAZ ABBASI, J.--- This judgment shall dispose of Criminal Appeal No,115 of 1989 and Murder Reference No,139 of 1989 arising out of the judgment, dated 11-5-1989 passed by Additional Sessions Judge, D.G. Khan in a murder trial.
2. Allah Diwaya alias Allah Ditta son of Qadir Bakhsh, Qadir Bakhsh son of Karim Bakhsh, Mithu son of Allah Bakhsh, Ghulam Rasool son of Mehmood, Sardar alias Saddu son of Karim Bakhsh, Allah Ditta son of Yar Muhammad, Aziz son of Mahmood, Imam Bakhsh son of Sohanra and Ghulam Sarwar son of Muhammad Bakhsh accused were tried for the offences under section 302/307/436/452/148/149, P.P.C. By Additional Sessions Judge, D.G. Khan who convicted the appellant Allah Diwaya alias Allah Ditta under section 302, P.P.C. And awarded him death penalty with fine of Rs,30,000 and in default of payment of fine to undergo R.I. For five yeaRs, Out of the fine, if recovered, Rs,20,000 was ordered to be paid to the legal heirs of deceased. The remaining appellants were awarded sentence of one year each with fine of Rs,1,000 each under section 323/34, P.P.C. And in default of payment of fine to suffer R.I. For two months each.
3. Precisely the facts of the case as unfolded in the F.I.R. (Exh.PA.) lodged by Muhammad Bakhsh P.W.5, the first informant, are that on 21-9-1985 at 6-30 a.m. Muhammad Bakhsh complainant, his wife Mst. Bakhtawar, deceased his son Ghulam Shabbir and Haji P.Ws. Were present in their house in village Jhok Bhutta when Qadir Bakhsh, Sardar, Mithu, appellants, Aziz Ahmed, Imam Bakhsh and Allah Ditta acquitted accused, armed with Sotas, Ghulam Rasul armed with Vehola, Allah Diwaya alias Allah Ditta armed with hatchet and Ghulam Sarwar carrying a tin of kerosene oil appeared and raised Lalkara that they would teach lesson to them for carrying litigation with them. On raising alarm of the deceased, Allah Bakhsh and Rub Nawaz (given up P.W.) were attracted to the spot.
Allah Diwaya alias Allah Ditta gave three successive hatchet injuries to Mst. Bakhtawar which landed on her head. Ghulam Shabbir when tried to intervene he was caused injuries by Mithu and Qadir Bakhsh appellant. Haji P.W. Was belaboured by Sardar and Ghulam Rasul appellants. Allah Ditta son of Yar Muhammad and Imam Bakhsh acquitted accused, collected thorny bushes and placed them inside the residential place of the complainant whereas Ghulam Sarwar accused sprinkled kerosene oil and Aziz Ahmad accused set them on fire, as a result of fire, the household articles lying there and the roof of the room were burnt.
4. The motive for the occurrence is that the accused party claimed ownership of the land where the residential house of the complainant was constructed and civil litigation was going on between the parties. The appellants in order to forcibly eject the complainant from the land attacked on them.
5. The case was registered against the appellants and their co-accused. Bakhtawar deceased, his son Shabbir and Haji P.Ws. Were medically examined by Dr. Naseer Ahmed P.W.8. On expiry of Mst.
Bakhtawar during the night between 21st and 22nd September, 1985 her dead body was despatched for post-mortem examination. Following injuries were found on her person:--
(1) A lacerated wound about 2-1/2" x 1/6" bone deep on left side of head, 2" above the ear. The wound was branched and was bleeding.
(2) A lacerated wound about 2" x 1/4" bone deep on back of head.
(3) Abrasion on back of right lumber region.
' Injuries Nos.1 and 2 were grievous and dangerous to life while injury No,3 was simple in nature. In the opinion of the doctor death was the result of injuries to vital organs which were sufficient to cause death in the ordinary course of nature. Ghulam Shabbir P.W. Sustained following injuries on his person:--
(1) A lacerated wound 3" x 1/6" skin deep on left side of head. 4-1/2" above the ear, longitudinal in direction.
(2) A lacerated wound about 1" x 1/6' x skin deep on back of right ear.
(3) Multiple bruises with abrasion in an area of 6" x 6" on back of right chest.
(4) A bruise 4" x 1/2" on back of lumber area lower part.
(5) A bruise 4" x 1/2" on back 2" below No,4.
(6) A bruise 3" x 2" in the centre of the chest in the mid line.
(7) A bruises 6" x 1/4" on left lateral chest, oblique in direction.
(8) A bruise 6" x 1/2" on outer side of right upper arm.
(9) A bruise 1" x 1" on front of left wrist.
' All the injuries were simple in nature caused with blunt weapon. The medical examination of Haji P.W. Reveals the following injuries on his person:--
(1) A lacerated wound 2" x 1/6" x skin deep on right side of head, 4" above the ear.
(2) A lacerated wound about 1-1/2" x 1/6" x skin deep in the centre of the head, 4-1/2" posterior to the root of the nose.
(3) Abrasion on medial side of left fore-arm.
(4) Abrasion on right little finger.
' All the injuries were found simple in nature caused with blunt weapon. The Investigating Officer collected the blood-stained earth from the site vide memo. Exh.P.D. And ashes of burnt sticks vide memo. Exh.P.E. All the appellants except Qadir Bakhsh were arrested on 30-9-1985. Allah Diwaya led to the recovery of hatchet on 6-10-1985 which was taken into possession vide Exh.P.F. Sardar accused got recovered Sota (P.5) which was taken into possession vide memo. Exh.P.G. And Qadir Bakhsh after his arrest on 1-10-1985 got recovered Sota (P.6) which was taken into possession vide memo. Exh.P.H. After completion of the investigation, the appellants with their co-accused were challaned. The Chemical Examiner's report Exh.P.Y. And that of the Serologist Exh.P.Z. Were made part of the record.
6. The prosecution in order to establish its case mainly relied upon the evidence of motive, occular account of Muhammad Bakhsh P.W.5, husband of Mst. Bakhtawar deceased, Ghulam Shabbir P.W.6 his son and Haji Muhammad P.W.7, injured witness. The medical evidence was furnished by Dr. Naseer Ahmed P.W.8 and the investigation was conducted by Qadir Shah P.W.9. The remaining witnesses are of formal nature and need not to be discussed.
7. The appellants with their co-accused denied the allegations at the trial and pleaded innocence.
Ghulam Sarwar, Imam Bakhsh, Aziz Ahmed, Allah Ditta (acquitted accused) and Sardar appellant raised the plea of alibi. Ghulam Rasul, Mithu, Qadir Bakhsh and Allah Diwaya put defence plea stating that the complainant party by way of aggression wanted to get forcible possession of their land and they while acting in the exercise of their right of self-defence and property, caused injuries to Mst. Bakhtawar deceased and the P.Ws. The statement of the appellants under section 342, Cr.P.C. Is as under:-- "Khasra No,145 of village Jhok Bhutta is owned by me and I am in possession of the same. On the day of the occurrence at 9-00 a.m. I and my sons went to said Khasra number for collecting fire woods. The complainant, Ghulam Shabbir, Haji P.Ws. And five others were already present there and were putting thorny bushes around the place of occurrence in order to show their forcible possession. I and my sons asked the complainant party to desist but they opened attack on us with hatchets and sticks. Apprehending danger at the hands of the complainant party, in exercise of the right of self-defence of person and property, we caused injuries to the complainant party.
We also informed the police about the occurrence but they did not register the case on our behalf but registered the present case giving it the colour of intentional and deliberate murder by suppressing injuries on our persons. Mst. Bakhtawar deceased participated in the occurrence and received injuries as a result of which she later on died in the hospital. In fact the complainant party was the aggressor. We have falsely been implicated in this case. We tried to lodge case against the complainant party but the police did not register our case. The police registered the present case at the instance of the complainant party in which the injuries on our persons have deliberately been suppressed by the complainant party."
' The appellants to substantiate their plea of right of self-defence, filed a private complaint in support of their version against their opponents who faced trial under section 307, P.P.C.
Muhammad Nawaz and Allah Wasaya were examined as defence witnesses apart from placing on record the documents Exhs.P.F. To P.O.
8. The learned trial Court at the conclusion of the trial bifurcated the appellants into two sets. Imam Bakhsh, Ghulam Sarwar, Aziz Ahmed and Allah Ditta were acquitted for the reason that they did not cause any injury to the P.Ws. And the deceased and had no motive against the complainant party.
The motive was with Allah Diwaya who wanted to disturb the physical possession of the complainant over the land in question. The appellants have admitted their presence and participation in the occurrence but with different version, therefore, the case of the appellants was adjudged in different context and it was concluded that the appellants wanted to disturb the physical possession of the complainant party which conduct of the appellants created ill-will between the parties and made the situation highly tensive calling to this fateful incident.
9. The learned counsel for the appellants with reference to Allah Diwaya v. State PLD 1993 SC 35 contended that prosecution is guilty of suppression of injuries on the persons of appellants' side.
Allah Nawaz and Allah Diwaya were injured in the occurrence but they were neither named as accused in the F.I.R. Nor injuries on their persons were disclosed. He submitted that while putting the two versions together, it appears that it was not a pre-planned or premeditated attack on the part of the appellants. The defence version, seems to be more plausible and befitting as the dispute between the parties was over the possession of joint land and admittedly as per report of the local commission, the complainant raised the construction a day earlier of the occurrence which is an evidence of an attempt to forcibly occupy the land. However, he submits that if the defence plea is not accepted, even then it being a case of a sudden and free fight falls within the purview of section 304, Part I, P.P.C. The conviction of Allah Diwaya appellant under section 302, P.P.C. Is not justified.
10. The learned Assistant Advocate-General in reply to the arguments advanced by the learned counsel for the appellants submitted that not the complainant party but the appellants were the aggressoRs, The presence of Mst. Bakhtawar deceased in her house was natural and the appellants had no business to go there. The land in dispute is admittedly owned jointly by the parties and the physical possession of the complainant is established on the record, therefore, the appellants in order to deprive the complainant from the possession of the land caused them injuries. He argued that the facts and circumstances of the case sufficiently attract the provisions of section 302, P.P.C. And Allah Diwaya was rightly convicted by the trial Court under section 302, P.P.C.
11. After considering the arguments of both the learned counsel and persuing the record, we are of the view that this was not a case of self-defence as pleaded by the appellants. The land was admittedly owned jointly by both the parties and the dispute was regarding the possession of the same at the spot. However, from the facts and circumstances physical possession of the appellants at the spot is not established, and therefore, they had no right of private defence of the property as claimed by them. The complainant party was justified to resist their possession which was attempted to be disturbed. However, the right of private defence of the person if available cannot be denied. The appellants side on the basis of their joint ownership deemed themselves to be in possession whereas it was natural for the complainant side to resist and protect their possession at the spot. The existence of thorny fence at the spot is admitted by both the parties.
Mst. Bakhtawar possibly made and attempted to occupy some area by extending the limits of the thorny fence, at the spot which matter called the trouble and both the parties having no patience clashed with each other and as a result thereof sustained injuries. From the facts and circumstances, it appears a case of free fight with no premeditation and preplanning and not a case of private defence.
12. The trial Court after treating it a free fight concluded that each appellant was responsible for his individual act and convicted Allah Diwaya appellant under section 302, P.P.C. Withholding the legal benefit of exception 4 to section 300, P.P.C. The benefit of exception 4 to section 300, P.P.C. Is to be given on account of conditions given therein and not because of intentional act. The criteria to adjudge the intention for the purpose of section 302, P.P.C. And A section 304, Part 1, P.P.C. Is different. Therefore, the benefit of exception 4 to section 300, P.P.C. Is not given for the reason that an act was not intentional. Intention if developed all of a sudden with attending conditions of undue advantage and cruelty of the act is a different matter, otherwise the intention referred to in section 304, Part I, P.P.C. Has its own scope and cannot be termed to be an intention under section 302, P.P.C. Both the parties sustained injuries in the occurrence. The correct facts disclosing the cause of initiation of the occurrence to determine the aggression of individual party has not been placed before the Court. From the given facts it is a case of sudden tight falling within the purview of exception 4 to section 300, P.P.C. Punishable under section 304, Part I, P.P.C.
13. For the foregoing reasons, we allow this appeal. The conviction and sentence of Allah Diwaya appellant under section 302, P.P.C. Is converted to under section 304, Part I, P.P.C. And he is awarded life imprisonment. The sentence of fine and compensation awarded to him by the trial Court is maintained.
14. The conviction of the remaining appellants under section 323/34, P.P.C. With sentence of fine etc. Is maintained. However, their sentence is reduced to the period already undergone by them. They are on bail, their bail bonds stand discharged.
' The total amount of fine, if recovered, shall be paid to the legal heirs of the deceased as compensation. The appellant Allah Diwaya is allowed benefit of section 382-B, Cr.P.C. Provided he pays the fine.